Will I ever be to blame with a level 5 vehicle?

Written by Doryane Lemeunier, a European Law Bachelor’s student at Maastricht University, Faculty of Law. Doryane has an international background having spent two years in United World College in Mostar and is currently developing her skills in a more national domain at the University of Glasgow. She is furthermore interested in pursuing her studies in the field of EU Competition law at the University of Amsterdam.

Entering a world of technology and magic. Some people’s dreams are to fly, but even more people when you ask around will tell you: “I wish I could teleport…”

Could that be a thing as the world’s technologies evolve so rapidly? Scientist have managed to teleport information in 2014 as a result of an experiment carried out under the supervision of Dr Hanson at the TU Delft’s Kavli Institute of Nanoscience.

If that ever happens, I will make sure to write an article in due time about how the law deals with that sort of technology. Nowadays, we might not yet be able to teleport, but for the last couple of years it seems that the automobile has been moving towards an automatic era, creating cars that can be self-driven. Wouldn’t that also entail new laws in the field of tort and traffic? So far nothing has been concretised since fully self-driving cars have not made their appearances on public roads.

As the Society of Automotive Engineers (SAE International) doesn’t fail to mention: there are different levels at which a car is considered to have some automatism:

Level 0 – No Automation: “the full time performance by the human driver of all aspects of the dynamic driving tasks, even when enhanced by warnings or intervention systems”

Level 1 – Driver Assistance: “the driving mode-specific execution by a driver assistance system of either steering or acceleration/deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task”

Level 2 – Partial Automation: “the driving mode-specific execution by one or more driver assistance systems of both steering and acceleration/ deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task”

Level 3 – Conditional Automation: “the driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task with the expectation that the human driver will respond appropriately to a request to intervene”

Level 4 – High Automation: “the driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task, even if a human driver does not respond appropriately to a request to intervene”

Level 5 – Full Automation: “the full-time performance by an automated driving system of all aspects of the dynamic driving task under all roadway and environmental conditions that can be managed by a human driver”

The Volkswagen Group has unveiled its first concept Level 5 autonomous vehicle. Named Sedric, it’s envisioned as capable of operating any driving mode in any environmental condition, allowing passengers to sit back and enjoy the ride.

Compared to everything we have had so far this is a big technological improvement, and the law indeed has to keep up with it.

Articles about liabilities have already been published. But let’s sit back and look at all the potential scenarios. Could it mean that a level 5 autonomous pick up the children from school? Could it mean that one could fall asleep or get some work done while the car transports them somewhere? Could it mean no more driver’s licences? Could it really mean one could get in the car drunk?!

These are a lot of questions that should carefully be considered by the legislature, since many situations will probably follow from these cars. The human mind being far from lawless and defects in manufacture and design being possible, who will be to blame? Who will take the fall?

Michael I. Krauss, has already written his idea about the turn tort law should take in this respect. In his mind there can be three possible defects:

Manufacturing defects in which case the manufacturer should be held liable for having marketed a product that did not perform as advertised.

Informational defects, where again manufacturers should be held liable only in case they acted negligently in the sense that they would be acting negligently if a reasonable manufacturer could have provided a better warning. Concerning informational defects however nothing more is said. What if the car has given clear signs of warning but the user has not noticed, would the user be held responsible?

Design defects in which case similarly to informational defects the rule should be based on negligence.

Nothing is mentioned in regards to the liability of the user when it comes to safeguard or control the vehicle in case of defect. Therefore, can a user ever be blamed when using a level 5 car?

It seems that the already imagined rules do not cover every scenario. Assuming a person came back drunk from a party and used the car to go home, prior to which the car informed the user of an informational defect, however being drunk the user didn’t notice and causes an accident, should the user then be held liable?

Take the same situation, but this time a child over 15 gets in the car, doesn’t necessarily understand what the car is trying to warn him about and drives off?

Should there be any more safeguards? Should there still be a minimum age? Should there still be a sobriety level to be respected?

What happens if the police tries to stop the car, for an allocated stop and search, how will the car notice if the user is sleeping? Should that involve new devices, for example electronic devices to make sure the cars pull over? Wouldn’t that undermine the security of the system when put into the wrong hands?

Many questions are still to be answered, the self-driving cars are definitely a security topic that the legislature should think through very carefully before putting them on the road.